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Introduction

The author, LCdr Guy Killaby, CD, LLB, LLM, is a member of the Office of the Judge Advocate General. He has served as a legal advisor on missions to Croatia and Bosnia in 1995, the Persian Gulf in 1998, Kosovo in 1999, and the Arabian Sea and Gulf of Aden in 2008. Opinions expressed or implied in this article are those of the author, and do not necessarily represent the views of the Department of National Defence, the Canadian Forces, or any agency of the Government of Canada.

On the 28th of May, 2008 at Ilulissat, Greenland, the five Arctic Ocean coastal states – Canada, Denmark, Norway, the Russian Federation, and the United States – adopted and released a declaration concerning the diplomatic roadmap for the “orderly settlement of any possible overlapping claims” in the Arctic.1 The Conference participants announced that they would remain committed to the “extensive international framework” known as the law of the sea.2 That framework would provide “for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea.”3 A consequence of this commitment to the existing treaty is that the five Arctic Ocean coastal states see “no need to develop a new comprehensive international legal regime to govern the Arctic,” and they propose to further their cooperation through “bilateral and multilateral agreements between or among relevant states.”

The Ilulissat Declaration was hailed by some of the participants as signifying that the “race to the North Pole is cancelled,” as the coastal states' valuable continental shelf claims would be determined in accordance with Article 76 of the Convention, rather than distributed as part of an international trust or the common heritage of mankind, as apparently had been hoped by some European States and other Arctic observers. The importance of the Declaration to Canadians lay in this rejection by the Arctic Ocean coastal states of any dramatic new legal regime to govern the Arctic, as had been put in place for the Antarctic.4 Our rights to the waters and the seabed in the Arctic Ocean and the Arctic Archipelago will be determined in accordance with the provisions of the Convention.

These international legal rights will be increasingly important as the Government of Canada struggles with new political and legal conflicts provoked by climactic, economic and geopolitical change. For Canada, the accelerated rate of reduction of ice-cover on Arctic waters presents a serious security challenge to be met. The probability of significant Arctic Ocean commercial shipping and of renewed interest in the exploitation of Arctic energy resources has raised public concern about the consequential problems of the enforcement of Canadian pollution controls and fisheries regulations. Further, this increased commercial activity will take place in waters that have for decades served as a covert and central theatre of strategic submarine operations. Perhaps paradoxically, the reduction of solid ice-cover will arguably make the Arctic Ocean and the waters of the Arctic Archipelago even more attractive to strategic nuclear submarine operations: vast and harsh, the Arctic Ocean is alternatively deep in the ocean basins and shallow above the continental shelf, with constantly moving ice that may be packed solid or rapidly melting. While these physical and hydrographic characteristics obviously affect the movement of submarines, it is the changing depths, salinity, and acoustic characteristics of the moving, grinding, and melting ice that provides natural cover for the maintenance of a submarine strategic deterrent.

Further, Canada's territorial interests in the Arctic islands and waters are already the subject of maritime and territorial boundary disputes, including disagreements with Denmark over title to Hans Island in the Nares Strait,5 the maritime and continental shelf delimitation of the Lincoln Sea, and a similar dispute with the United States in the Beaufort Sea.6 However, the most significant and well-known disputes have been provoked by the 1985 establishment by the Government of Canada of the straight baselines enclosing the waters of the Arctic Archipelago and their description as Canadian "historic internal waters." This assertion of "arctic sovereignty" has also been made in the face of claims by other states – argued by Canada to be premature – that the Northwest Passage through the waters of the Arctic Archipelago is an "international strait" in which foreign vessels can lawfully exercise the right of transit passage in accordance with the provisions of the UNCLOS and customary international law. In the past there had been little incentive to resolve these matters since the Northwest Passage has long existed more as a fable than serving as a practical sea line of communication. The prohibitive expense associated with the exploitation of Arctic oil and gas and commercial inaccessibility of the Arctic waters have dampened the enthusiasm of the Arctic Ocean coastal states to regularize their respective claims of jurisdiction. Further, while the two Cold War superpowers persisted in conducting frequent secret under-ice submarine operations in the Arctic Ocean and Archipelago, the demise of the Soviet Union shifted the question from forefront of public concern.

However, in addition to climate change, a number of other factors have simultaneously triggered global interest in Arctic waters and the seabed beneath, including: the volatility of global petroleum and gas markets and concern with the vulnerabilities of supplier infrastructure; the emerging commercial transportation opportunities of transiting through the Northwest Passage and to destinations in the Arctic Ocean; the emergence of developing economies and regional maritime powers seeking new resources and access to transportation infrastructure; and, the loosening and realignment of Canada's traditional military alliances.

Canada will have to adjust to these changing circumstances while reconciling some of its declarations and claims with the 1982 UNCLOS.7 Canada signed the Convention on the 10th of December, 1982 and, while it entered into force with 60 ratifications on the 16th of November, 1994, it was not ratified by Canada until much later in 2003. The Convention introduced the concept of the "exclusive economic zone" to the existing maritime zonal regime, extended a portion of the regulatory jurisdiction of coastal states over more of their continental shelf, and confirmed traditional navigation rights such as innocent passage. It also established important new navigation rights such as transit passage and archipelagic sea lane passage. These new coastal zones and the new formulation of navigation rights altered the international legal framework to which Canada secured her title to the internal waters and territorial sea and her rightful exercise of rights over her exclusive economic zone and the continental shelf. During the negotiations of the Convention, Canada's regulatory and enforcement interests, like those of many other coastal States, were often weighed against the traditional "freedom of the seas" asserted by many maritime states.8 The equilibrium struck in the Convention, including the securing of coastal state sovereignty and the sovereign rights to regulate certain matters, served to quiet the increasing maritime state concern about "creeping" and "thickening" jurisdiction and coastal states' worries about any buccaneering laissezfaire pillage of mankind's common heritage.9

The mere invocation of the words "Arctic sovereignty" has long prompted romantic notions and nationalist emotions among Canadians, but rarely active engagement. The 1985 Canadian establishment of straight baselines surrounding the Arctic Archipelago constituted an express assertion of sovereign rights and plenary jurisdiction over those remote and hostile waters, identical to those rights exercised over its land and water territory. However, the legal regime established and subsequently maintained by successive Canadian governments over the Arctic waters beyond its territorial sea reflected a more limited functional jurisdiction to prevent pollution and regulate the fisheries. As the only arm of the Government of Canada with the capability to operate effectively and persistently in these remote waters, it will naturally fall to the Canadian Forces to conduct naval operations and provide the necessary support to law enforcement. This paper will investigate the legal dissonance between Canada's domestic legislative regime in place over Arctic waters and Canada's international legal obligations under the Convention, and to consider how that will influence the conduct of naval operations.

After a necessary review of the physical and strategic characteristics – including qualities both commercial and military – of the Arctic region, this paper will provide a brief chronology of the Canadian legal claims over the Arctic waters. This history will provide a context for the analysis of Canada's claim of historic internal waters between the straight baselines surrounding the islands of the Arctic Archipelago and of the challenge of navigation rights being asserted through those waters. While the strength of the Canadian position will not be weighed, its legal nature and character will be subjected to legal analysis. Of particular relevance to this analysis will be the portions of the Convention which set out the rights and responsibilities of coastal states over adjacent waters and which describe the navigation rights of innocent passage and transit passage.

Finally, the paper will analyze the legal consequences of the claim of historic internal waters upon the Canadian Navy's support to law enforcement in the Arctic region and its military mission to protect Canadian sovereign rights. This analysis will discuss the influence of the Canadian legal position and, given that the Government of Canada has now made the decision to find the authority for its Arctic claims under the UNCLOS regime, the international law of the sea upon the distinctive legal bases for those missions. The sophistication demanded in the planning and execution of those tasks simultaneously will be considered, as well as any consequential legal constraints imposed on those operations.

Footnotes

2There is no express reference in the Declaration to the 1982 United Nations Convention on the Law of the Sea [the Convention or UNCLOS]. This may be attributed to the fact that the United States has yet to ratify the Convention.

4The Declaration was greeted with mixed reviews in Canada. Besides complaints that the Minister of Foreign Affairs rather than the Minister of Natural Resources Gary Lunn would have been a more appropriate national representative, most of the Canadian commentary was focused upon the advisability of the continued accommodation of the Arctic Council . The Arctic Council is an eight-nation coalition of northern states – Canada, Denmark (Greenland, Faroe Islands), Finland, Iceland, Norway, Sweden, the Russian Federation, the United States – and includes non-Arctic states, native organizations, and non-governmental organizations as observers. As observed by Randy Boswell in "Conference could mark start of Arctic power struggle" Canwest News Service (28 May 2008), online at http://www.canada.com/topics/news/world/story.html?id=d0135cd8-c15a-48a3-9579-0df5f8e185c1, comment was divided on the impact of the Declaration upon Canada:

"University of Calgary political scientist Rob Huebert said the five-country plan to manage the ocean's affairs means 'Arctic issues will be dealt with on an ad hoc, piecemeal, bilateral basis. The Arctic is much too complicated to deal with in this manner today.' He said the coming problems require 'an Arctic Council with teeth, or each issue will deteriorate on its own'".

"But University of British Columbia political scientist Michael Byers praised the direction of the grouping he dubbed 'the Arctic Ocean 5.' The five-nation summit was a 'perfectly appropriate venue to discuss Law of the Sea issues as they relate to the Arctic Ocean seabed. Countries that do not border on the Arctic Ocean simply don't have the same interests or potential disputes with respect to those areas and potential resources".

5Hans Island is a small uninhabited island less than a mile in length that is located between Greenland and Ellesmere Island in the Nares Strait and is claimed by both Canada and Denmark. The Canada/Denmark Maritime Boundary Delimitation Agreement was signed December 17, 1973 delimiting the boundary waters and continental shelf between Ellesmere Island and Greenland. Given its small size and lack of resources, the two states had agreed at the time of the agreement to ignore the issue of title to Hans Island.

6The 141st meridian has been considered the land boundary between Alaska and the Yukon Territory since 1825. However, given the increased oil exploration and drilling in the Beaufort Sea, the maritime and continental shelf delimitation has become an issue. Canada maintains that the relevant treaties and international law support an extension of the 141st meridian from land into the sea, while the U.S. argues on behalf of an equidistance line.

81958 Convention on the High Seas, Art. 2: “the high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty….” Professor Donat Pharand observed that “not a single vote was cast against this consecration of the freedom of the seas at the Geneva Convention.” Donat Pharand, "Freedom of the Seas in the Arctic Ocean" (1969) 19 U.T.L.J. 210 at 210. Elliot L. Richardson headed the American delegation to the Third Conference and concisely explained the dominant military element to the doctrine of the freedom of the seas: “Warships and aircraft had complete movement outside the territorial sea. Within the territorial seas, the movement of foreign warships and aircraft was governed by the right of 'innocent passage'. While surface warships had the right to transit without prior notification, the 'innocence' required that the transit not be prejudicial to the 'peace, good order, or security' of the coastal State. Submarines and aircraft were not given the freedom: innocent passage did not embrace the right of aircraft overflight or of submerged submarine transit.” Elliot L. Richardson, "Power, Mobility, and the Law of the Sea" (1979-1980) 58 Foreign Affairs 902 at 905.

9Wayne S. Ball, "The Old Grey Mare, National Enclosure for the Ocean" (1996) 27 Ocean Development and International Law 103. Ball describes "creeping jurisdiction" to be the physical expansion of regulatory jurisdiction, and "thickening jurisdiction" to be the widening range of activities in prescribed zones subject to regulation.